Northwestern University Law Review

Justice Blackstone's Common Law Orthodoxy

[...] nearly all the scholarship about Blackstone's views on law has relied solely on a work he originally drafted when he was no older than thirty and had spent only seven unsuccessful years at the bar. Unlike men who had spent decades in practice, Blackstone permitted the principles of the common law orthodoxy to determine his decisionmaking and did not discard the theories he had taught when they became inconvenient.13 Sitting in an age when Lord Mansfield had freed judges to loosen the h...

Copyright and Copy-Reliant Technology

[...] should a nonexpressive use, which nonetheless requires copying the entirety of a copyrighted work, be found to infringe the exclusive rights of the copyright owner? [...] to treat the phenomenon of copy-reliant technology comprehensively requires addressing the significance of opt-out mechanisms under copyright law.

Resisting Guantánamo: Rights at the Brink of Dehumanization

[...] it enlarges the time frame for action and result, decentering the transformative "rights moment" - the landmark case, the smoking gun document, the game-changing revelation - and instead commits the lawyer to a long-term oppositional stance, and a set of daily practices of objection and contravention.347 Second, the resistance frame contextualizes the individual client representation within the larger structures and operations of power, rejecting an atomistic view of lawyering or a diff...

Constitutional Law of Speech and Press: Politics, Rhetoric, and Dialogue

In any case, Tsai says that popular sovereignty supports his theory of constitutional meaning. Because of Tsai's emphasis on popular sovereignty, social support counts for a lot.6 Although no one living today wrote the words of the First or Fourteenth Amendments related to freedom of speech and press, readings of the constitutional text by presently constituted people are not inferior to the original text because social support for the two cannot be meaningfully distinguished.

Equal Accountability Through Tort Law

[...] the idea of mutual accountability in a community of equals might just provide us with an answer to the three questions with which we began: [...] mutual or equal accountability helps provide the framework within which we can start asking these questions. [...] more work needs to be done to assess how such a system of equal accountability might function better.

Reconceptualizing Trespass

More generally, it empowers the entitlement holder to transact with others on her own terms. [...] property rule protection also provides immunity against forced transactions. [...] a person interested in using another's private property must either transact on the owner's terms or forego his plan. [...] we have identified special cases in which trespass victims should receive only marketvalue compensation.

After Bmc Resources, Inc. V. Paymentech, L.P.: Conspiratorial Infringement As a Means of Holding Joint Infringers Liable

[...] Part III proposes a new cause of action, conspiratorial infringement, which would close the loophole created by BMC Resources. [...] a patent holder can currently obtain redress for infringement if the infringer, either alone or through agents, performs all of the steps of the process, but not if there are multiple infringers that scheme to perform different steps of the process without a directing or controlling party.

The Offences Clause, Due Process, and the Extraterritorial Reach of Federal Criminal Law in Narco-Terrorism Prosecutions

[...] this Comment argues that due process does apply to extraterritorial applications of U.S. law, and that due process requires that a defendant be on notice - aware or likely to be aware - that the United States could assert jurisdiction.\n In this example, either Afghanistan or the United Kingdom would have superior jurisdictional claims because both forums have a territorial nexus to the crime - the location of the drug transaction and the location of the bombing. Exercising jurisdictio...

The Permanent and Presidential Transition Models of Political Party Policy Leadership[Dagger]

In the major constitutional regimes elsewhere, political parties more clearly identify their policy leaders even when not in power, and thus have a much smaller number of personnel decisions to make when transitioning to power.3 By contrast, American political parties do not clearly identify who their policy leaders are when they do not occupy the White House. Because ofthat, and because American Presidents have such a large number of political appointments to make, the transition period bec...

Between Rucker and a Hard Place: The Due Process Void for Section 8 Voucher Holders in No-Fault Evictions

[...] they have interpreted Rucker's denial of an "innocent tenant" defense to justify preemption of other equitable defenses, such as "cure,"7 because these defenses might provide a tenant a second chance to maintain her residence, a direct violation of the zero-tolerance standard known as the One Strike policy.8 Section 8 is arguably the largest and most important federal lowincome housing program.9 As such, any future challenges to Rucker will likely come from its tenants. Since Section 8...

The Synergy of Early Offers and Medical Explanations/Apologies[Dagger]

Injury victims tendered early offers would lose their recourse to full-scale, medical malpractice litigation, but they would also receive payment without the uncertainty, delay, and transaction costs they now face. [...] the recourse to full-scale litigation is lost only if the defendant guarantees prompt payment compensating the malpractice litigant for his economic losses plus attorney's fees.

Erratum